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EPIC Supports Challenge to National Security Letter "Gag Orders": EPIC has filed an amicus curiae brief in In re National Security Letter, a case challenging the government's bulk collection of customer records without judicial approval. Under the current law, companies are not even allowed to discuss these subpoenas or reveal information about the number of NSLs they receive each year. EPIC argued in its friend of the court brief that this "gag order" provision frustrates the public's right to know about a far-reaching government surveillance program. EPIC routinely provides information to the public about government surveillance programs, but is unable to inform the public about NSL surveillance because of the provision now under review by a federal appeals court. For more information, see EPIC: In re NSL and EPIC: National Security Letters. (Apr. 1, 2014)

According to the 2011 Foreign Intelligence Surveillance Act (FISA) Report the Justice Department submitted 1,745 applications to the Foreign Intelligence Surveillance Court, a 10.5% increase over 2010. Of the 1,745 FISA search applications, 1,676 concerned electronic surveillance. The FISA court did not deny any applications, though it did modify 30 applications. Also in 2011, the FBI made 16,511 National Security Letter requests for information pertaining to 7,201 different U.S. persons. This is a substantial decrease from the 24,287 national security letter requests concerning 14,212 U.S. persons in 2010. The annual report on FISA, released by the Department of Justice, is far less extensive than the annual wiretap report, produced by the Administrative Office of the US Courts. EPIC has recommended greater accountability for the FISA Court. For more information, see: EPIC: Foreign Intelligence Surveillance Act Court Orders 1979-2011 and EPIC: Foreign Intelligence Surveillance Act.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has sent a letter to Attorney General Eric Holder regarding key privacy safeguards for the PATRIOT Act. The Senate Judiciary Committee passed the PATRIOT Act Sunset Extension Act earlier in the year, which included many reforms, but the full Senate did not act on the measure Because the administration supported the reforms within the bill, Sen. Leahy advised the Attorney General that he can voluntarily adopt many of the reforms even without Congressional action. Senator Leahy expressed particular concern about the possible misuse of National Security Letter authority. Attorney General Holder will appear before the Senate Judiciary Committee on Wednesday, April 14, 2010 for an oversight hearing. For more information, see EPIC: National Security Letters.

The Department of Justice Office of the Inspector General has issued a report on the FBI's use of "exigent letters" and other means to obtain telephone records from three unnamed phone companies. The 300-page report concludes that many of the FBI's practices "violated FBI guidelines, Department policy," and the Electronic Communications Privacy Act. The report also found that "the FBI sought and acquired reporters' telephone toll billing records and calling activity information" through improper means. The report concludes that "the FBI's initial attempts at corrective action were seriously deficient, ill-conceived, and poorly executed" and makes several recommendations for improvement. In a 2007 letter to the Senate Judiciary Committee, EPIC recommended that the FBI's National Security Letter authority be repealed. For more information, see EPIC National Security Letters.

Representatives Conyers, Nadler, and Scott introduced two bills today that would amend the PATRIOT Act and the Foreign Intelligence Surveillance Act. The Patriot Amendments Act of 2009 will enhance reporting and judicial oversight of law enforcement powers, including the National Security Letter process. The FISA Amendments Act of 2009 will place new limits on the government's ability to collect and store Americans' communications without a warrant and repeals retroactive immunity. For more information, see EPIC FISA, EPIC PATRIOT Act.

Today, Sen. Russ Feingold (D-WI) and seven cosponsors introduced the Judicious
Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act. The bill would amend the PATRIOT Act, the FISA Amendments Act, and other surveillance and intelligence laws. Among other changes, the JUSTICE Act would reform the National Security Letter process, revise the guidelines for business records orders, eliminate the catch-all provision for "sneak-and-peek" searches, and add new safeguards for FISA roving wiretaps. The JUSTICE Act would also repeal retroactive immunity for telecommunications companies, and is supported by many civil liberties organizations. For more information, see EPIC USA PATRIOT Act, EPIC FISA, EPIC Wiretapping, and EPIC National Security Letters.

In a report to Congress, the Justice Department revealed a substantial increase in the use of National Security Letters to acquire information on American citizens without court order. In 2008, the FBI made 24,744 NSL requests pertaining to 7,225 persons compared to 16,804 requests pertaining to 4,327 persons in 2007. The report also detailed 2,082 applications by the FBI to the Foreign Intelligence Surveillance Court for authority to conduct surveillance and physical searches. An earlier audit had revealed that some "blanket-NSLs" did not document the relevance of the information sought to a national security investigation and the statistics were not reported to the Congress. For more information, see EPIC's Page on Foreign Intelligence Surveillance Act, National Security Letters, and Wiretapping.

Background

The Federal Bureau of Investigation (FBI) issued a national security letter (NSL) to an unnamed telecommunications provider seeking "subscriber information." In response, the provider filed a petition with the District Court for the Northern District of California, challenging the NSL and the FBI's authority to issue the letter. Specifically, the provider argued that (1) the NSL nondisclosure provision is an unconstitutional prior restraint under the First Amendment; (2) the judicial standard of review of NSL nondisclosure requirements violates separation-of-powers principles; and (3) that both the NSL itself and the accompanying nondisclosure requirement do not satisfy strict scrutiny under the First Amendment.

District Court Orders

The case was filed in the Northern District of California and was decided on March 14, 2013. The lower court held that the nondisclosure provisions were unconstitutional based on the First Amendment standards established in Freedman v. Maryland. In re Nat'l Sec. Letter, 930 F. Supp. 2d 1064. The court found that (1) the NSL statute did not satisfy Freedman because it does not require the Government to institute judicial proceedings; (2) the statute prohibits the mere fact of receipt of an NSL even though disclosure of that fact will not cause harm in many cases; (3) the NSL nondisclosure provisions are indefinite unless the recipient brings a judicial challenge; and (4) the statute "impermissibly attempts to circumscribe a court's ability to review the necessity for nondisclosure orders." The court found that the nondisclosure provisions were not reasonably severable from the substantive NSL provisions, and struck down the entire NSL provision. The court issued an injunction, but stayed its order pending appeal.

On May 6, 2013, attorneys for the Department of Justice, Attorney General, and FBI appealed the court's order.

After the district court stayed its injunction, the NSL recipient filed a separate petition to set aside two additional NSLs, and the government filed a cross-petition to enforce them. Notwithstanding its prior opinion, the court denied the petition to set aside the NSLs and granted the Government's cross-petition to enforce them. The recipient then appealed the order, and both cases are now pending before the U.S. Court of Appeals for the Ninth Circuit.

Originally Section 2709(c) (the NSL provision at issue in this case) automatically forbade every recipient from disclosing information about the FBI's request. That nondisclosure provision was found unconstitutional by a district court, and Congress subsequently amended the statute in 2006. As amended, the nondisclosure rule applies whenever the FBI certifies that disclosure "may result in a danger to the national security of the United States, interference with a criminal, counterterrorism, or counterintelligence investigation, interference with diplomatic relations, or danger to the life or physical safety of any person." 18 U.S.C. § 2709(c)(1). But according to a 2007 Department of Justice Inspector General report, the FBI issues these certifications with 97% of the NSLs it issues.

The recipient of an NSL may request that a court modify or set aside the nondisclosure order that accompanies an NSL. 18 U.S.C. § 3511(b). If the petition is filed within one year of the date the recipient receives the NSL, the court may modify the order only if it finds that “there is no reason to believe that disclosure may endanger the national security of the United States” or other enumerated interests. 18 U.S.C. § 3511(b)(2). In making this determination, the court must treat an official certification as “conclusive unless the court finds that the certification was made in bad faith.” Id. If the petition is filed more than one year after receipt of the NSL then the government must either “terminate the nondisclosure requirement or re-certify that disclosure may result in danger to national security” within 90 days. 18 U.S.C. § 3511(b)(3).

Review By the Second Circuit

After these amended nondisclosure provisions were enacted by Congress, they were ruled unconstitutional in Doe v. Gonzales. 500 F. Supp. 2d 379 (S.D.N.Y. 2007). On appeal, in Doe v. Mukasey, 549 F. 3d 861 (2d Cir. 2008), the Second Circuit affirmed in part and only upheld the remaining provisions after it imposed new constraints on the FBI’s ability to authorize and enforce its nondisclosure orders. The court made clear that the government bears the burden of persuading “a district court that there is a good reason to believe that disclosure may result in one of the enumerated harms.” Id. at 876.

EPIC's Interest in In re National Security Letter

EPIC tracks and reports on the governments use of National Security Letters and other Foreign Intelligence Surveillance Act authorities based on the current reports provided by the Attorney General to congress. These annual letters provided a basis to evaluate these programs, but lack the specificity and nuance of the annual Wiretap Reports prepared by the Administrative Office of the U.S. Courts. Without additional public information about the use of National Security Letters, EPIC and other public interest organizations will be limited in their ability to effectively inform the public about government surveillance activities. EPIC has previously testified before congressional committees on the need for additional transparency and oversight of national security investigations. For more information, see EPIC: National Security Letters.